Chan Kwai Lai v The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.703 OF 1967

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JUDGMENT

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1. At 2.30 p.m. on 4th September 1967 the appellant was driving a private car in Leighton Road when it collided with an old woman who was walking across the road on a stud crossing. She died as a result of the injuries caused by the impact.

2. On 10th November the police laid an information with the magistrate charging the appellant with careless driving contrary to s.14(1) of the Road Traffic Ordinance, Cap.220. The magistrate issued his summons, and the case came on for hearing on the 24th November when the appellant, who appeared in person, pleaded guilty to the charge. No evidence was called; but the magistrate was handed a plan and a number of photographs of the area; and a statement of facts prepared by the police was read to the court. The appellant was then asked if he admitted the facts alleged in this statement; and, in answer to this question, he said "Yes".

3. The appellant had been previously convicted of dangerous driving in April 1951. On that occasion he was fined $25. In November 1952 and in December 1958 he was convicted of speeding, the fines being $20 and $15 respectively. His record also showed that he had a more recent conviction for failing to halt at a "major road ahead" sign. The appellant admitted his previous convictions. When he was asked if he had anything to say before sentence was passed, he asked for leniency. The magistrate then sentenced him to a fine of $1,000 and three months' imprisonment; and he was disqualified from holding a driving licence for five years.

4. From the photos and the statement it appears that there was a speed limit of 30 miles per hour in the area; that Leighton Road between the Roxy roundabout and Yan Ping Road is straight; that it is a one-way street carrying three lanes of traffic from north to south; that there are railings guarding the pavements on each side to prevent pedestrians from walking off the pavements; and that the stud crossing where the collision occurred is the only suitable place in the area for pedestrians to walk across Leighton Road. The statement of facts continues thus:-

5. After he was sentenced the appellant engaged a solicitor; and on 2nd December, the magistrate granted an application by the appellant for a review of sentence. In this proceeding, the proprietor of the oriental Motor Co. testified as to the appellant's good character; and he said that the appellant had been in his employment for over 20 years as a motor repairer and salesman. The police informed the magistrate that the car which the appellant had driven on 4th September, namely, a Datsun, had disc brakes on the front wheels.

6. The magistrate, having considered submissions made on the appellant's behalf, refused to vary the sentence which he had imposed on 24th November.

7. The appellant has now engaged counsel; and he appeals to this court on the ground that the sentence is too severe.

8. In his grounds for decision, the magistrate said:-

"In my view this was certainly one of the worst, possibly the worst, case of bad driving ever to have come before me. Indeed, upon the admitted facts, I was surprised that the appellant had not been prosecuted for causing death by dangerous driving. Not only was it established that the appellant had driven his car at a speed of 55 m.p.h. on a restricted 30 m.p.h. road, but that he had driven at that speed on that road approaching a pedestrian crossing. In the case of Chiang Shu-cheong and the Queen⁽¹⁾ Sir Michael Hogan, C.J., observed that common sense indicated that pedestrians were likely to cross roads on studded crossings and that consequently drivers should exercise particular care on approaching them so that they would not through excessive speed or other misuse of the vehicle which they controlled endanger the lives or physical safety of others. This the appellant had manifestly failed to do. In passing sentence I disregarded the appellant's previous convictions having regard to the time which had elapsed between their dates and 4th September last. I was, however, firmly of the opinion that if ever there was a case which called for a sentence of imprisonment and an order for disqualification for a substantial period in the public interest, this was such a case."

9. Counsel attacked the magistrate's statement that it had been established that the appellant had driven at a speed of 55 m.p.h. Counsel's submission was that there was no direct evidence from the appellant, or from any other person, that he was driving at 55 m.p.h.; that there was no evidence as to the conditions under which the police test was conducted; that even assuming that the test was conducted under conditions similar to those obtaining on 4th September, it was unreasonable for the magistrate to have deduced that the appellant was travelling at 55 m.p.h. from the mere fact that another person driving the same car at 55 m.p.h. at the same place had produced a tyre mark of 60 feet in the process of stopping the car by hard braking; and that there was no evidence as to the length of tyre mark which the appellant's car would produce when its initial speed before braking was 30 m.p.h. Counsel also drew the court's attention to the following statement which appears on the back of a pamphlet which incorporates the Highway Code. It does not appear to be part of the Code itself, not having been prepared under the authority of s.7 of the Road Traffic Ordinance. The statement reads:-

"A good driver -- a vehicle in perfect condition -- good weather -- broad daylight -- good dry roads -- under these conditions a vehicle cannot stop in distances less than those shown below:-

10. I do not think there is anything in the submission that the magistrate was not informed whether the police test was conducted under conditions similar to those obtaining at the time of the incident. The magistrate was being given facts to enable him to assess a proper sentence; and in the absence of any suggestion to the contrary he was quite justified in assuming that a test, which had obviously been designed to obtain data from which he might infer at what speed the appellant was travelling, was conducted fairly. If conditions on the day of the test were not similar to those obtaining on the 4th September, the test was useless and the court was being deliberately misled. The magistrate had no reason to think that the police had, say, conducted the test on a slippery road, or that prior to carrying out the test they had changed the tyres of the car. If it comes to that, there was no evidence that the P.W.D. had not put on a different type of road surface in the interval between the time of the incident and the time of the test.

11. I agree with counsel's submission that there was no "evidence" that the appellant was driving at 55 m.p.h. in the sense that no sworn evidence of any kind was called. The appellant had pleaded guilty to the charge; and his guilt was not in issue. Of course, there was nothing to prevent the prosecution from calling evidence for the purpose of assisting the court in the matter of sentence; but this question would only have arisen if the appellant had challenged any of the facts placed before the court.

12. There was no evidence as to what disc brakes are; but I have always understood (indeed I would say it is almost a matter of common knowledge) that when the brakes of a motorcar are applied, the brake shoes expand against the rotating brake drums, and the friction between the shoes and the drums slows down the motorcar. If the brakes are applied very hard, the brake shoes may press so hard against the drums that the wheels are "locked", and the wheel ceases to turn although the motorcar still moves forward. From that moment, the slowing down process is achieved as a result of friction between the tyre and the road surface. The road is harder than the tyre. Part of the tyre is rubbed off on the road. Hence the black marks known as skid marks or tyre marks.

13. It frequently happens in trials involving motoring offences that the prosecution call a police officer to say that he has tested the vehicle at the place where the collision...